The 2018 Activation of the Crime of Aggression: to the Hague Dock for Invading a Country?

11.12.2018

Jan Lhotský

The term “crime of aggression” in international law determines, with a certain degree of simplification, the individual criminal responsibility of a person (for example a head of state) for ordering an armed attack against a foreign state. Including this crime in the jurisdiction of the International Criminal Court in The Hague has been discussed for many years and in December 2017, the final decision was adopted that the crime of aggression would be included in the jurisdiction of the International Criminal Court on the 17 July 2018, twenty years after the signing of its founding treaty – the Rome Statute.

In line with the changes, the judges amended the Regulations of the Court, which entered into force on 15 November 2018.

Next to genocide, crimes against humanity and war crimes, aggression became the fourth crime that the Court will be able to deal with. What does its legal regulation look like and for what kind of cases can we expect it to be used in reality?

From Nuremberg to Rome and later to Kampala

The crime of aggression, originally referred to as a crime against peace, was successfully prosecuted by the international criminal tribunals after the Second World War in Nuremberg and in Tokyo. Fifty long years followed during which no international criminal tribunal had jurisdiction over the crime of aggression. In 1998, the authors of the founding treaty of the International Criminal Court did not agree on a definition of the crime of aggression. Therefore, they placed it in the Rome Statute among the other three crimes (Article 5 para. 1); however, they also specified that the Court would be able to exercise jurisdiction over it only after the states parties agreed on the definition, as well as on the conditions for the exercise of jurisdiction over the crime of aggression. Thus, at the time of the establishment of the International Criminal Court, the question of the crime of aggression was left for later.

In 2010, a review conference was convened in Kampala, Uganda, where the states parties dealt with this deficiency. By the end of the conference they had succeeded, but it needs to be said that the adopted definition, with the conditions for the exercise of jurisdiction, are rather complicated. The delegates agreed that the jurisdiction of the International Criminal Court would be extended to the crime of aggression after the amendment of the Rome Statute (Kampala Amendment) is ratified by 30 states parties, and second, after the states parties reconfirm activation of the jurisdiction in another seven years.

Which states can the Kampala Amendment be applied to?

The conference on activation took place in New York, in December 2017. The Kampala Amendment clearly states that in the case of an attack by a state that is not a party to the Rome Statute, the Court will not be able to exercise jurisdiction over such a case. However, it was much less clear whether the Court would be able to exercise jurisdiction with regard to a crime of aggression resulting from an attack of a state that is a party to the Rome Statute, but not a party to the Kampala Amendment.

In New York, the delegates divided into two groups with how they understood the earlier adopted Kampala Amendment. Thus, the key legal question was whether the Court would be able to exercise jurisdiction with regard to the crime of aggression towards nationals of states parties to the Rome Statute that did not ratify the Kampala Amendment, if the attacked state did ratify the Kampala Amendment.

This has significant practical consequences. One group of states argued that the states parties to the Rome Statute accepted the jurisdiction of the Court with regard to the crime of aggression while ratifying the Rome Statute, and the Kampala Amendment presently specifies this crime. This is why the Court should also have jurisdiction towards nationals of countries that are parties to the Rome Statute but not the Kampala Amendment, in case they attack a state that joined the amendment (emphasis on Article 5 para. 1 in connection with Article 12 para. 1 of the Rome Statute, see for exampleStefan Bariga). This possibility would offer broader protection, specifically over a potential attack on the 123 states that are currently parties to the Rome Statute.

On the other hand, the second group of states led by France and the United Kingdom, argued that the Court will not be able to exercise jurisdiction over nationals of states that are parties to the Rome Statute but did not ratify the Kampala Amendment, not even in the case that the attack would take place on the territory of a state party to the amendment (emphasis on Article 121, para. 5, second sentence of the Rome Statute, see for exampleDapo Akande). This variant would offer narrower protection over a potential attack on the 37 states that are currently parties to both the Rome Statute and the Kampala Amendment.

In order to prevent blocking the efforts of the completion of this long process, the second variant was supported in the end. The 17 July 2018 was determined as a start of the Court’s jurisdiction with regard to the crime of aggression.

It needs to be added that the Court is independent in regard to the interpretation of the relevant provisions of the Rome Statute. Therefore, whichever alternative it supports will ultimately depend on the Court. However, considering the fact that in the compromised wording of the resolution, the delegates explicitly supported the second option, which offers narrower protection, it can be assumed that the International Criminal Court will follow this interpretation.

Definition of the crime of aggression

With regard to the definition itself, Article 8 bis para. 1 states that “[…] ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” [emphasis added]. Taking particular parts one at a time, it is necessary to emphasize that the relevant person needs to be in a particular position (so-called leadership clause) and therefore, it will typically concern representatives of states and governments. Furthermore, it needs to be noted that for a qualification of the crime of aggression, the act of aggression must have the character, gravity and scale to constitute a manifest violation of the UN Charter. From a further text it is apparent that at least two of the three requirements have to be fulfilled.

A condition making the Court’s jurisdiction with regard to the crime of aggression relatively narrow, is the necessity of the ‘manifest violation’ of the UN Charter. What does it mean? The Kampala definition does not specify it in any way. I dealt with this question in an article several years ago (Manifest Violation of the UN Charter) and came to the conclusion that the ‘grey zone’will be excluded from the jurisdiction of the Court. By a ‘grey zone’ I mean disputable cases of armed interventions, in which rational legal arguments in support of legality of the intervention can be presented, including so-called humanitarian interventions. Apart from that, it is possible to imagine an event that does not belong to a grey zone, but its character, gravity and scale (or their combination) will not amount to a manifest violation of the UN Charter. It therefore needs to be emphasized that according to international law, specific acts of aggression may be illegal; however, they would not amount to a manifest violation of the UN Charter.

The International Criminal Court, thus, has jurisdiction only with regard to acts of aggression that cause a violation of the prohibition of the use of force (Article 2 para. 4 UN Charter), which is evident and not disputed, or in the words of the Kampala Amendment, it is ‘manifest’.In the article mentioned above, I discussed several military interventions from the past in order to discover whether they would amount to a crime of aggression according to the new definition, if they took place after its activation. Events like Yugoslavia (1999), Afghanistan (2001) or Libya (2011) would seem to lie below the threshold of manifest violation. On the other hand, events such as Kuwait (1990), Iraq (2003) or Ukraine (Crimea) (2014) would likely appear above the threshold, and thus constitute a crime of aggression. I mention this only to illustrate the definition in practical examples, as due to the temporal jurisdiction, the International Criminal Court will not be able to deal with the above mentioned events. In any case, it is evident that due to the vague term of ‘manifest violation’, the judges of the Court will have significant space for the interpretation and evaluation of contentious cases.

With regard to the definition, Article 2 para. 2 also needs to be mentioned as it specifies what is considered an ‘act of aggression’. The paragraph mentions the UN General Assembly resolution 3314 (XXIX) of 1974 that defined the act of aggression (not the crime of aggression). The list of possible forms of attack was not exhaustive. The new definition took over the list (invasion or attack by the armed forces, bombardment, etc.); however, it is not clear whether the list in the current definition is still non-exhaustive or not. Different legal opinions exist in this regard with significant practical consequences. For example, the list does not contain cyber-attacks, which could have serious consequences in the contemporary world.

Conditions for the exercise of jurisdiction

At the International Criminal Court, an investigation into a situation can be triggered (in general according to the Rome Statute) by one of the following means: referral by a state party, initiation by the Prosecutor (proprio motu), or referral by the UN Security Council. Apart from the fact that Article 8 bis contains the definition of the crime of aggression, the new provision also includes specific conditions for the exercise of the jurisdiction with regard to the crime of aggression. Article 15 bis defines the procedure in the case of an initiation by the referral of the state or by the Prosecutor.

If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation with respect to a crime of aggression, he or she would first have to ascertain whether the Security Council has made a determination of an act of aggression committed by the state concerned. In other words, if the Security Council determines an occurrence of an act of aggression, the Prosecutor can initiate an investigation of the crime of aggression. This provision represents a compromise solution, because a number of states claimed that in accordance with the UN Charter, the Security Council should have a certain role in determining an act of aggression. Nevertheless, it is appropriate to mention that this provision introduced a certain political aspect, as the Security Council is a political body.

On the other hand, it is encouraging that the Security Council determining an act of aggression is not the only option to deal with the case. If the Security Council does not determine an act of aggression within six months from the date of notification by the Prosecutor, he or she will be able to proceed with the investigation with respect to a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation with respect to a crime of aggression. The Pre-Trial Division consists of six judges, which is double compared to a Pre-Trial Chamber, which consists of three judges and authorizes the investigation with regard to the original three crimes (genocide, crimes against humanity and war crimes). Thus, the provision of the new crime includes an option to initiate an investigation of a crime of aggression in the absence of the support of the Security Council.

However, it is also necessary to emphasize that a state that is under the jurisdiction of the International Criminal Court with regard to the crime of aggression can opt out of the Court’s jurisdiction by lodging a declaration with the Registrar of the Court. This would of course need to be done before a potential attack. The option to opt out of the jurisdiction thus also weakens the new definition. On the other hand, it is possible that due to such a provision, more states will not be too reluctant to ratify the Kampala Amendment.

Article 15 ter defines the conditions for the exercise of jurisdiction with respect to a crime of aggression in the case of initiation of the investigation through a Security Council referral. In such a case, the Prosecutor does not need to ascertain the opinion of the Security Council as this has been expressed at the very beginning. In this respect, it is necessary to emphasize a significant difference between initiation of the investigation by a state party or the Prosecutor in comparison to initiation by the Security Council. If the Security Council triggers the investigation, the jurisdiction of the Court is not limited to the states parties and it is also possible to investigate a crime of aggression perpetrated by a national of a non-party state to the Rome Statute. It is possible to imagine such a case in reality.

The crime of aggression: active from 17 July 2018

The Czech Republic ratified the Kampala Amendment in 2015 and currently (December 2018) it has 37 states parties. Is the accepted definition of the crime of aggression strong? Frankly, it is not. The definition covers only actions that clearly violate the prohibition of the use of force against other states. Thus, the contentious cases in the grey zone stay below the agreed threshold. This is, by itself, not necessarily bad. The International Criminal Court should only deal with the most serious crimes, which are of concern to the international community as a whole. Also, from a practical point of view, such a narrow definition enables more states to join.

Several other factors weaken the new provisions. For example, the opt-out option, the outcome of the activation conference, which according to which the Court will exercise jurisdiction only with regard to the nationals of states that joined the Kampala Amendment, and also the question of whether the list of the possible forms of attack is exhaustive, which would have an influence on the possibility of including cyber attacks among acts of aggression. A lot will need to be clarified by the decision-making practice of the International Criminal Court.

The definition of the crime of aggression should have been drafted in a better and more comprehensible way, so that it would prevent a number of contradictory (and legally possible) interpretations. Nevertheless, it is the result of very complicated negotiations of states with a number of opposing interests. Both in 2010 in Kampala and in December 2017 in New York, the final resolution was adopted on the last day of the conference after midnight. It remains a question whether a real alternative was a better text, or no text at all. In my opinion, it is appropriate to be moderately optimistic with regard to the adopted definition and to be pleased that in 2018, on the day of the 20th anniversary of the adoption of the Rome Statute, we made another long awaited step in the right direction.

The author worked as a Visiting Professional at the Chambers of the International Criminal Court in The Hague (October 2017 – April 2018). The contribution is an English version of the author’s article published online in Czech in June 2018.